AT THE GATES: QUALIFYING AND CHALLENGING QUALIFICATIONS OF EXPERTS

At the Gates: Qualifying and Challenging Qualifications of Experts

Jack Daniels*

Introduction

Any good trial attorney knows that he or she should never underestimate the psychological power of hearing testimony from an individual whom the court has dubbed an "expert." It is such influence that places a duty on the opposing counsel to exclude unreliable expert testimony, while at the same time requiring the expert's counsel to qualify the expert before the trial judge and/or the jury. The gatekeeping function established in Daubert v. Merrell Dow Pharmaceuticals, Inc.[1] and reiterated by its progeny, Kumho Tire Co. v. Carmichael[2] and Wesigram v. Marley Co.,[3] will continue under the amendments to Federal Rules of Evidence 701-703.

Under this combination, the trial court must engage in a more searching inquiry. Amended F.R.E. 702, in particular, reflects the principles articulated in Daubert. The new rule and its accompanying notes apply reliability requirements to all expert evidence, prevent lay witnesses from testifying as experts, clarify the trial court's gatekeeping function with respect to the admissibility of expert testimony, and discourage the admission of "backdoor hearsay" by assuring greater reliability of experts.

Judicial familiarity with Daubert’s principles, and acceptance of its corresponding challenges, have made indispensable tools of motions to exclude expert testimony; these should not be overlooked by counsel. Nevertheless, counsel should understand that the exclusion of expert testimony is not an easy task; exclusion is still the exception, not the rule.

The following materials should aid counsel in the effort to either qualify the expert by establishing the expert’s credibility, or to successfully exclude the expert’s testimony.

II.

Making it Past the Gates:

Qualifying the Witness as a Credible Expert by “Qualifying” the Expert’s Qualifications

A. Beginning the Process

The process of qualifying the expert should begin when the case is initiated. As soon as counsel is retained, counsel should begin the process of selecting an expert. While deliberating about which specific individual to select as the expert on an issue, counsel should begin assessing the expert’s qualifications.

After selection, but before any testimony is taken, counsel should perform a thorough review of the proposed expert’s credentials. In this regard:

· It would be a good idea for counsel to verify each portion of the expert’s resume (as the proponent, it is important to preclude an exaggerated resume from becoming the subject of opposing counsel’s cross-examination).

· The majority of each portion of the expert’s resume should be specifically related to the field about which the expert will be testifying.

B. How to “Qualify” the Expert’s Qualifications Before a Judge or Jury

During the expert's testimony, counsel should examine each part of the expert’s resume in detail. Furthermore, counsel should prepare a special juror-tailored version of the expert's resume that emphasizes the direct relationship between the expert's credentials and the subject at issue. However, although counsel should be thorough in reviewing the expert's qualifications, counsel must be careful not to bore the judge or jury. Regarding specific areas of the expert's resume, counsel should heed the following in particular:

· Education. Counsel does not want to engage the expert in simply listing his or her earned degrees. Instead, counsel should demonstrate to the judge and jury that the expert was educated at a very fine and reputable higher-learning institution, but also that the expert has supplemented his or her credentials with vigorous course work that is specific to the issue at hand.

· Work experience. The expert should be able to articulate how his or her relevant work experience has contributed to the field or substantiated previous theories and/or techniques.

· Independent research. The research on which the expert bases his or her opinion should be performed independently of the litigation. Either counsel or the expert should emphasize that the expert’s research and scholarship occurred within the expert's own professional venue.

· Publications. The expert should explain that his or her research publications directly relate to the issue pending before the court.

· Prior testimony at trial and in depositions. The expert should quantify how many times he or she has testified. The expert should point out not just that he or she has testified at 300 trials, but that 250 of them covered the same specific issue, on which the expert offered the same opinion or conclusion.

After counsel has established the expert's credentials and qualifications, the next step is to qualify the expert's testimony as reliable and relevant. The easiest way to accomplish this is to observe the Daubert factors. Although less than definitive, since the trial judge has discretion about which factors to consider, the Daubert factors establish a guideline by which to demonstrate to the judge and jury that the expert uses the same level of intellectual rigor that characterizes practice in the relevant field:

· The expert should explain that the theory or method on which his or her opinion is based can be and/or has been tested. If prior testing produced the same results that obtain in the instant case, reliability of the expert’s opinion is enhanced. It may also be helpful to have the expert explain what kinds of tests were performed or could be performed.

· Next, counsel should demonstrate that the theory or method on which the expert bases his or her opinion has been subjected to peer review and publication. In addition, counsel should emphasize that the expert's opinion was supported or corroborated by peer review.

· The expert also should know the potential error rate affecting the particular method. The expert should be able to explain the consequences of any such statistics as well. Of course, the method used by the expert should bear a low known potential rate of error.

· Further, the expert should explain in detail how the standards controlling operation of the scientific method or technique have been consistently maintained. The expert also should be able to prove that he or she followed the standards and procedures mandated by the particular method.

· Finally, the expert should explain that the reasoning or methodology employed to reach the particular conclusion has gained general acceptance within the relevant scientific community. This should include the concomitant explanation that experts in the field use the same approach that this expert used, and that the expert opinion in this case flows from that same approach.

C. Additional Factors to Consider

Notwithstanding the above, counsel should move beyond a thorough examination of the expert's resume and a consideration of Daubert factors. In order to build a case that makes it past the gates and successfully avoids exclusionary tactics by opposing counsel, the expert's counsel should also heed the following issues:

· Bias. Although not necessarily self-defeating, bias can have a detrimental effect when the expert crosses the line to advocate for a cause. Most importantly, the expert should not maintain a close relationship with the client. Such a relationship will reduce the weight of the expert’s testimony.

· Fee. The expert's fee should be reasonable. The expert should be paid for time, not testimony. It follows that the expert should be paid according to an hourly rate or a flat fee, regardless of the litigation outcome. This arrangement precludes opposing counsel from impeaching the expert for monetary bias, i.e., being an "entrepreneurial" expert.

· Known principles. Counsel should demonstrate that the opinion or conclusion sought requires that an expert apply known principles of science, technology, or other specialized knowledge to the facts at hand. Further, counsel should demonstrate that the expert is experienced with the particular scientific method and its application, and that such experience was used in arriving at his or her particular conclusion.

· Commitment. Counsel and the expert should demonstrate that the expert is committed to the requirements of his or her profession.

· Path taken. By explaining the path taken, or the history of the expert's investigation, the expert will establish credibility with the judge and the jury. Counsel should lead the expert step-by-step through the process by which the expert eventually reached his or her opinion. This process should include, but need not be limited to, the review of reports, reconstruction, experiments, interviews, data analysis, and documentation.

· Well-regarded. The expert should be well-regarded by peers. Most importantly, the expert should have suffered no discipline by a professional organization (especially for fabricating data). Counsel should investigate any derogatory information about the expert in advance. If there has been some professional reproach, the expert's own counsel should bring this matter to light early in the proceedings. Also, if at all possible, counsel should bar the use of any negative information by filing a motion in limine.

· Non-local experts. If it is necessary to use an out-of-state or other non-local expert, counsel should emphasize that such expert is a “superstar” in the field. In addition, counsel should use a local expert to corroborate and substantiate the non-local expert’s testimony.

· Teacher to the court and jury. The expert should be a good educator for the fact finder. The expert should analyze the facts in detail, and integrate those facts into the opinion. In addition, the expert should be able to speak clearly and convincingly, adopting an amicable, humble, and trustworthy manner. The expert should use analogies and examples to help the jury understand the issues. It might also be helpful to use visual aids when providing highly technical or scientific conclusions, since the jury is more likely to remember visual representations and trust what they have come to understand. Moreover, counsel should remember that it is better to present a likable and articulate expert with fine credentials than a world-class expert who is not a persuasive speaker.

III.

Keeping the Gate Shut:

Challenging Qualifications and Excluding Testimony of Unreliable Experts

A. Excluding the Testimony of an Unreliable Expert

Excluding unreliable expert testimony should be as fundamental a strategy in litigation as the motion for summary judgment. Although expert testimony can be excluded at various stages of litigation, counsel should not await the end of discovery or the night of trial to pursue this exclusion. Rather, challenges to the expert’s qualifications, and thus his or her testimony, should begin at the outset of the case.

B. Challenging the Qualifications of an Expert

There are various methods counsel might use to challenge the qualifications of an expert. Initially, counsel should seek out problem areas within the opposing expert's resume. These might include:

· Education. Counsel should identify any negative information regarding the expert's educational background. Did the expert earn substandard grades in those courses relevant to the subject issues? Is the degree-granting institution certified by the appropriate association or organization? Was the expert ever subject to academic probation? Is the expert's education specifically related to the issue before the court?

· Work experience. Counsel should identify and emphasize any substantive irrelevance or distance between the expert’s work experience and the matters at issue.

· Research. If the expert's research was not conducted independently of the litigation, counsel should be sure to emphasize that fact. Juries have a tendency to question the credibility of "full-time" witnesses. A “jack of all trades” is a master of none. Moreover, courts tend to scrutinize research and analysis that have been performed solely for purposes of litigation, preferring disinterested research or analysis performed in the expert's usual professional venue.

· Publications. Counsel should inform both the court and the jury if the expert's research publications are not reputable or scholarly, or if the publications are irrelevant to the matter at issue.

· Prior testimony. Counsel should review transcripts of all prior testimony given by the expert. Are the conclusions consistent? Is the previous testimony related to the same subject currently before the court?

After the expert's credentials and experience have been thoroughly examined, counsel should continue challenging the expert's testimony by asserting that it is unreliable and irrelevant. The easiest protocol by which to accomplish this is to follow the Daubert factors:

· Counsel should identify whether the theory, technique or method on which the expert bases his or her opinion is incapable of being tested, or has yet to be tested. If tests have been performed, it should be demonstrated that the tests do not adequately measure accuracy.

· If the technique or theory has not been subject to peer review or publication, that too should be noted by counsel.

· If the potential rate of error is unknown or unusually high, such information should be provided to the jury and the judge. Such a circumstance would devalue the scientific reliability of the expert's opinion.

· Counsel should demonstrate that the standards controlling operation of the scientific or technical method were not consistently maintained. For example, if an instrument is used in the collection of relevant data, counsel should indicate that the instrument was improperly used.

· Counsel should also locate other experts who are willing to assert that the method used by the opposing expert is not a method that is used or would be used by the general population of experts in the field. Without the support of the relevant scientific community, the opinion of the opposing expert loses its weight.

When attending to the expert’s testimony, as with the expert’s qualifications, counsel should not stop at the resume or the Daubert factors. To diminish the effect of the opposing expert’s testimony, counsel should also heed the following:

· Bias. Counsel should attack the credibility of the expert by exposing bias and advocacy in favor of the opposing client.

· Fee for success. Counsel should investigate how the opposing expert will be compensated. If the fee is determined by the outcome, the expert’s credibility is greatly diminished.

· No science/technology needed. If the opposing expert’s opinion or conclusion does not require the application of any known scientific or technological principles, counsel should emphasize that the opinion is not based on specialized knowledge. Therefore, the witness should be disqualified as an expert.

· History of investigation. If the opposing expert cannot clearly explain the path taken to reach his or her conclusion, counsel should emphasize this weakness on cross-examination and in closing.

· Not well-regarded. Counsel should seek to identify other experts in the field who have justifiable reason to lack professional respect for the opposing expert. If the opposing expert has been charged or disciplined by a professional organization related to the subject issue, counsel most certainly should address this matter before the judge and jury.

· Non-local expert. Counsel should inform the jury that the expert is not from the area and question why opposing counsel did not choose an expert from among the local experts who occupy the same or similar fields of study. This questioning insinuates a particular motivation for testifying (the "entrepreneurial" expert).

· Poor speaker. If the expert cannot speak clearly and convincingly, counsel should question the witness' confidence in his or her opinion.

· Erroneous assumptions. Counsel should “know the record cold,” e.g., testimony, reports, witness statements, exhibits. Such familiarity with the record helps to undermine the opposing expert’s testimony if counsel can demonstrate that the expert’s opinion is premised on erroneous factual assumptions.

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